Report No. 79
Relevant at this stage is also the question of constitution and disbanding of Benches. It is undoubtedly a matter which falls within the domain of the discretion of the Chief Justice of the High Court, and we are averse to prescribing fetters on the general exercise of that discretion. It is because of the complaints that have sometimes been made on this score that we have considered it proper to suggest some guidelines, not with a view to fettering the exercise of that discretion as with a view to bringing about better functioning of the High Court in order to attain the objective of securing optimum output.
Experience has shown that a Bench constituted of judges having a particular aptitude for a certain branch of law is best suited to handle cases pertaining to that branch with ease, grace and speed, and its overall performance is generally very satisfactory, both from the point of view of quality and from the point of view of speedy and larger disposal.
7.13. Assignment of cases of Judges with experience.-
Complaints are not uncommon that some of the judges to whom certain types of cases are assigned have no experience of that branch of law. The result is that a case which, before a judge having experience, of that branch of law, might take, say, one hour would take before the judges before whom it is posted four or six hours if they have no aptitude for that branch of law. This results in unnecessary wastage of the time of the court. Such wastage can be avoided if the Chief Justice takes into account the aptitude of different judges while constituting Benches.
A person holding the office of the Chief Justice should acquaint himself, as he normally does, with the aptitude of his colleagues. It is necessary that he should take that fact into account when constituting different Benches. It hardly needs to be emphasised that the Benches of the High Court cannot be used virtually as training ground for judges in branches of law new to them.
7.14. Observations in Report of earlier Committee.-
In this context, we may refer to the observations !lade by the High Courts Arrears Committee presided over by Mr. Justice Shah1 which we quote below:
"There is occasionally failure to make optimum utilisation of the judge strength. One factor which undoubtedly affects the turnover in some High Courts, is the non-utilisation of judges having special aptitude and talent for a particular class of causes. It should not be difficult for the Chief Justice of the High Court to assess the special aptitude and talent of the judges in his court and to allocate as far as possible judicial work in such a manner that judges are called upon to attend to causes for which they have special experience, aptitude or talent.
It need hardly be emphasised that if judges with special acquaintance or competence or who have specialised in certain branches of the law are allotted cause: under that particular branch of the law, the time taken to decide those causes would be much shorter than the time taken by judges not familiar with the branch, especially a specialised branch."
1. High Courts Arrears Committee Report (1972), p. 83, para. 135.
7.15. Vanderbilt's view.-
Arthur. Vanderbilt, Chief Justice, Supreme Court of New Jersey, on this aspect said :1
"Judicial work is of various kinds; appellate, criminal, civil, equity, probate and matrimonial. A Judge who is equally interested or equally proficient in all of them is indeed a rarity. Every judge, if he is to do his work best, should be assigned, wherever possible, to the kind of judicial business in which he excels. Because this power of assignment is a delicate one, to be exercised only on mature reflection in the interest of the judicial establishment as a whole, it should be committed to the Chief Judicial Officer of the state, and he, in turn would do well to seek the advice of his colleagues, even though the ultimate responsibility must be solely his."
Experience has shown that the observance of this rule has yielded good results.
1. Vanderbilt Challenges of Law Reform, (1955), p. 87.
7.16. Duration of Benches.-
We may also advert to the question of duration of benches. Principally, the object of constituting a Bench is disposal of a particular type or category of work, such as first appeals, second appeals, land acquisition appeals or writ petitions. To relieve monotony, work of a different nature is also included at times in the list of cases posted before a Bench. But the principal object is what we have just now stated. This system has worked well, and has yielded good result. It is, however, desirable that the Benches so constituted should be allowed to function for a reasonable length of time and the Judges constituting the Bench should know well in advance when the Bench is to break, so that there may be no part heard cases left by the Bench after it is disbanded.
7.17. Disbanding of Benches.-
Another aspect that results in delay and also dissatisfaction amongst the lawyers and the litigants is that the bench so constituted for hearing a particular type of appeal is discontinued abruptly without making arrangement for the hearing of cases (of the same type) already on the daily list in the order of their dates of institution. What happens in such cases is that when the bench is disbanded, those cases are taken out of the daily list altogether and very often it is after months, if not years, that they suddenly appear again in the daily list either at the bottom or at the top.
In either event, apart from causing inconvenience to the counsel, this results in the old matters becoming older and the newer institutions gaining preference. To obviate this difficulty, it is necessary that cases not disposed of by the disbanded bench should be posted for hearing before the successor bench. In case that is, for some reason, not immediately possible, steps should be taken to post them for hearing without delay.